Keith Patten reviews the implications of Dawkins upon liability in negligence & evidentiary burdens
At first sight the recent Court of Appeal decision in Dawkins v Carnival plc [2011] EWCA Civ 1237 may seem to be of only specialist interest, being a case which arose under the Athens Convention on the Carriage of Passengers by Sea. As Pill LJ points out, however, the test for liability under the Convention is essentially a negligence test and the issues which arose are substantially the same as would have arisen had the accident occurred on premises in England and Wales. The decision also reviews the oft-cited, and sometimes misunderstood, case of Ward v Tesco Stores Limited [1976] 1 All ER 219, [1976] IRLR 92.
The facts
The facts of Dawkins are relatively simple. The claimant was a passenger aboard the cruise ship Oriana. While walking through the conservatory restaurant at about 2pm she fell and suffered injury. The judge found as a fact that on the balance of probabilities she fell on some liquid, probably
